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Proposed Rule; Request for Comments; Amendment 5 to the Atlantic Herring Fishery Management Plan

Announcement of the proposed rule for Amendment 5 to the Atlantic Herring Fishery Management Plan

NMFS proposes regulations to implement measures in Amendment 5 to the Atlantic Herring Fishery Management Plan.  Amendment 5 was developed by the New England Fishery Management Council to:  Improve the collection of real-time, accurate catch information; enhance the monitoring and sampling of catch at-sea; and address bycatch issues through responsible management.  The proposed Amendment 5 management measures include:  Revising fishery management program provisions (permitting provisions, dealer and vessel reporting requirements, measures to address herring carrier vessels, regulatory definitions, requirements for vessel monitoring systems, and trip notifications); increasing observer coverage and requiring industry to contribute funds towards the cost of increased observer coverage; expanding vessel requirements to maximize observer’s ability to sample catch at-sea; minimizing the discarding of unsampled catch; addressing the incidental catch and bycatch of river herring; and revising the criteria for midwater trawl vessels’ access to groundfish closed areas.

Announcement of the notice of availability for Amendment 5 to the Atlantic Herring Fishery Management Plan

You may submit comments on this document, identified by NOAA-NMFS-2013-0066, by any of the following methods:

The comment period for the notice of availability for Amendment 5 ends on June 21, 2013.  Comments submitted on the notice of availability and/or the proposed rule prior to June 21, 2013, will be considered in NOAA Fisheries’ decision to approve, partially approve, or disapprove Amendment 5.  Comments submitted by the end of the comment period for the proposed rule (July 18, 2013) will be considered in NOAA Fisheries decision to implement measures proposed by the Council.



Q.  Why are you proposing new management measures for the herring fishery?

A.  The primary goals of Amendment 5 are to improve catch monitoring and minimize bycatch of other species, including groundfish and river herring, in the Atlantic herring fishery.

Q.  How are you addressing the Court's concerns about deficiencies in previous revisions to the herring fishery management plan (Amendment 4 to the Herring FMP) to minimize bycatch?

A.  The Court found that NOAA Fisheries didn’t adequately consider in a previous management action (Amendment 4) a federal requirement to minimize bycatch to the extent practicable.  We intend to provide a response to the Court by August 2, 2013, clarifying how the Herring FMP minimizes bycatch to the extent practicable.  Amendment 5 proposes measures to minimize bycatch, but those measures are only part of how bycatch is minimized in the herring fishery.

Q.  What are the measures under consideration for minimizing bycatch?

A.  There are several measures under consideration for minimizing bycatch.  One of those measures is the ongoing voluntary river herring bycatch avoidance program, conducted by the Sustainable Fisheries Coalition, MA Division of Marine Fisheries, and the University of Massachusetts Dartmouth’s School of Marine Science.  The New England Fishery Management Council will review this program and may use the information to create additional measures to avoid river herring interactions with the herring fishery in a future action.  Another proposed measure allows a river herring catch cap to be created in a future action.  The Council has already started the process to consider a river herring catch cap and will review river herring catch cap options at its June 2013 meeting.  Lastly, the proposed measure to increase the herring possession limit for vessels fishing for mackerel would allow fish that would otherwise have been discarded to be landed and sold.

Q.  What is the River Herring Bycatch Avoidance Program?  How will this help protect river herring?

A.  The Sustainable Fisheries Coalition, the MA Division of Marine Fisheries, and the

University of Massachusetts Dartmouth School of Marine Science is working on a voluntary “river herring bycatch avoidance strategy.”  This strategy includes real-time communication with fishing vessels on river herring distribution and encounters in the herring fishery, portside sampling, and data collection to evaluate if oceanographic features may predict high rates of river herring and shad encounters. 

Q.  What are the proposed measures to learn more about bycatch/incidental catch in the herring fishery?

A.  Midwater trawl vessels fishing in Groundfish Closed Areas would need to carry a NOAA Fisheries observer and bring all fish aboard the vessel for sampling by the observer.  This way the Council and NOAA Fisheries will be able to learn more about how much bycatch is actually occurring in these areas.

Q. What happens if a herring vessel releases fish before it has been sampled by an observer inside a Groundfish Closed Area?

A.  Vessels may continue fishing but they would need to leave the Groundfish Closed Areas for the remainder of that trip and complete a report about what was caught and released.

Q.  What are your concerns with approving the Council’s recommendations to increase observer coverage and require partial industry-funding for increased coverage?

A.  The Council recommended 100% observer coverage on some herring vessels and that the industry pay a maximum of $325 per day toward this coverage.  We have concerns with these measures because the at-sea costs associated with observer coverage in the herring fishery are higher than $325 per day and currently, there isn’t a mechanism to allow cost-sharing for observer coverage between NOAA Fisheries and the industry. 

However, we are continuing to work with the Council to develop a funding solution to pay for these costs.  If we can develop a way to fund the at-sea costs of observer coverage, measures requiring 100% observer coverage may be implemented in a future action, subject to NOAA Fisheries’ budget appropriations and observer coverage priorities. 

Q.  If Amendment 5 will not increase observer coverage, does the amendment propose other improvements to catch monitoring?

A.  Yes.  (1) Revising regulatory definitions to help improve the accuracy of reporting; (2) expanding trip notification requirements to help place observers on vessels ; (3) expanding vessel requirements to help observers collect catch information in a safe and efficient way; and (4) expanding monitoring requirements in Groundfish Closed Areas to help reduce the discarding of unsampled catch so we can better understand the amount of other species caught.

Q.  What are your concerns with the Council’s recommendation for new dealer reporting requirements?

A.  The Council recommended that herring dealers accurately weigh all fish and document how they determine the composition of the catch.  These measures don’t specify how fish are to be weighed or provide standards for estimating species composition.  Without accompanying standards for data collection, these proposed measures may not improve the accuracy of data reported by dealers; therefore, we are concerned that the additional reporting burden on the dealers wouldn’t be justified.

 Q.  What is slippage and how does it differ from operational discards?

A.  If catch is discarded before it has been brought aboard the vessel and made available to the observer for sampling, that catch is defined as slippage.  Fish that cannot be pumped aboard the vessel and remain in the net at the end of pumping operations are considered operational discards and not slipped catch. 

 Q.  What measures did the Council recommend to address slippage? 

A.  The Council recommended that all catch be brought aboard the vessel and made available to the observer for sampling. 

Q.  Are there situations when slippage would be allowed?

A.  The Council recommended that if catch cannot be brought aboard, catch may be slipped if:  (1) bringing catch aboard compromises the safety of the vessel; (2) mechanical failure prevents the catch from being brought aboard; or (3) spiny dogfish, which can clog the nets, prevents the catch from being pumped aboard.  If catch is slipped, the vessel operator would be required to report why catch was slipped, estimate the quantity and species composition of the slipped catch, and the time and location of the slipped catch.

Q.  How does the proposed slippage cap work?

A.  Once there have been 10 slippage events in a herring management area by vessels using a particular gear type (including midwater trawl, bottom trawl, and purse seine) and carrying an observer, vessels that subsequently slip catch in that management area using that gear type and carrying an observer, would be required to return to port.  For example, once NOAA Fisheries notifies the herring fleet that the slippage cap for midwater trawl gear in Herring Management Area 1A was triggered, then all vessels using midwater trawl gear that subsequently slip catch in Area 1A would be required to return to port.

Q.  Are there instances where slippage would not be counted against the cap?

A.  Slippage would count against the cap if catch was slipped for safety or mechanical reasons, but not if spiny dogfish prevented the catch from being pumped aboard the vessel.

Q.  Why did the Council recommend slippage caps?

A.  To allow vessels to be able to slip catch when there are safety concerns or mechanical problems, but limit slippage in a way that would not unduly penalize the entire fleet by requiring everyone to stop fishing after every slippage event.

Q.  Why is NOAA Fisheries not supportive of slippage caps?

A.  We are concerned with the fairness and safety of the slippage caps.  The slippage cap is potentially unfair, because the requirement to return to port may be applied to vessels that had no role in the previous 10 slippage events.  This measure also raises safety concerns because a vessel operator may need to choose between bringing catch aboard, despite dangerous conditions, or returning to port.

Q.  Are there other reasons you don’t support the slippage caps?

A.  Yes.  The threshold for triggering a slippage cap (10 slippage events by area and gear type) doesn’t  have a strong biological or operational basis.  Observer data indicate that the estimated amount of slipped catch is relatively low compared to fishery landings.  During 2008-2011, the number of slippage events per year was variable and ranged between 35 and 166.  The average number of slippage events by gear type during 2008, 2009, and 2011 are as follows:  4 by bottom trawl; 36 by purse seine; and 34 by midwater trawl. 

Q.  If slippage caps are not implemented as part of Amendment 5, are there other measures that help improve monitoring in the herring fishery?

A.  Yes.  Even if slippage caps are not implemented, the ongoing data collection by the Observer Program and the proposed sampling requirements for midwater trawl vessels fishing in Groundfish Closed Areas would still allow for improved monitoring in the herring fishery and an incentive to minimize the discarding of unsampled catch.